Elspeth & Peter; Mark & Peter; and John & Peter

This matter concerned appeals by Elspeth (the mother), her adult son Mark, and her son-in-law John, against findings of contravention of parenting orders and subsequent penalties imposed by Benjamin J. The dispute arose from the children, aged 12 and 8, refusing to spend time with their father during school holidays, following a contested hearing where the mother had opposed contact. The trial judge found the mother had seriously breached the orders by failing to ensure the children went with their father and sentenced her to a suspended prison term. The mother's son and son-in-law, present at the attempted handover, were also found to have aided and abetted the contravention and received similar sentences.

The court was required to determine whether the trial judge erred in finding that the mother, her son, and her son-in-law had contravened the parenting orders. Specifically, it needed to assess whether the mother's actions constituted a serious contravention and if the penalties imposed were appropriate, considering the statutory framework for contraventions. Furthermore, the court had to consider whether there was sufficient evidence to support findings that Mark and John had aided or abetted the mother's contravention. The appropriateness of the costs order made against the mother in favour of the Independent Children's Lawyer was also a point of appeal.

The Full Court allowed the mother's appeal in relation to penalty. While acknowledging her contravention was proven and no reasonable excuse was offered, the court held that her failure to encourage the children to spend time with their father, as a first contravention, should not have been viewed as a serious disregard for her obligations. Consequently, it should have attracted penalties prescribed by subdivision E of Division 13A of Part VII of the Family Law Act 1975 (Cth), rather than the more severe sentence imposed. The court also allowed the appeals of Mark and John, finding no evidence that they intentionally assisted or encouraged the contravention, and set aside the orders made against them. The costs order in favour of the Independent Children's Lawyer was varied to reflect that the mother pay the ICL's costs as agreed or assessed.

The court ordered that the original orders against the mother, Mark, and John be set aside, with a determination that Elspeth had contravened the parenting order regarding the children spending time with their father. The mother was ordered to pay the Independent Children's Lawyer's costs. Further written submissions were to be filed by the mother, Mark, and John regarding penalty and costs of the contravention proceedings and the appeal, with the father to file submissions in response, followed by further reply submissions.